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SECURITY AGREEMENT

Indenture Agreement

SECURITY AGREEMENT | Document Parties: VERTIS INC | ENTERON GROUP LLC | USA DIRECT, LLC | VERTIS HOLDINGS, INC | VERTIS MAILING, LLC | VERTIS, INC | WEBCRAFT CHEMICALS, LLC | WEBCRAFT, LLC You are currently viewing:
This Indenture Agreement involves

VERTIS INC | ENTERON GROUP LLC | USA DIRECT, LLC | VERTIS HOLDINGS, INC | VERTIS MAILING, LLC | VERTIS, INC | WEBCRAFT CHEMICALS, LLC | WEBCRAFT, LLC

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Title: SECURITY AGREEMENT
Governing Law: New York     Date: 7/17/2008

SECURITY AGREEMENT, Parties: vertis inc , enteron group llc , usa direct  llc , vertis holdings  inc , vertis mailing  llc , vertis  inc , webcraft chemicals  llc , webcraft  llc
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Exhibit 10.2

 

SECURITY AGREEMENT

 

SECURITY AGREEMENT, dated as of July 17, 2008, between VERTIS, INC., a Delaware corporation (“ Borrower ”), VERTIS HOLDINGS, INC., a Delaware corporation (“ Holdings ”), ENTERON GROUP LLC, a Delaware limited liability company (“ Enteron ”), WEBCRAFT, LLC, a Delaware limited liability company (“ Webcraft ”), WEBCRAFT CHEMICALS, LLC, a Delaware limited liability company (“ Webcraft Chemicals ”), USA DIRECT, LLC, a Delaware limited liability company (“ USA Direct ”), VERTIS MAILING, LLC, a Delaware limited liability company (“ Mailing ”) (each a “ Grantor ” and collectively, the “ Grantors ”), each a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its capacity as Agent for Lenders.

 

W I T N E S S E T H:

 

WHEREAS, pursuant to that certain Senior Secured, Priming and Super Priority Debtor-in-Possession Credit Agreement dated as of the date hereof by and among Grantors, the Persons named therein as Credit Parties, Agent and Lenders (including all annexes, exhibits and schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “ Credit Agreement ”), Lenders have agreed to make the Loans and to incur Letter of Credit Obligations on behalf of Grantors;

 

WHEREAS, in order to induce Agent and Lenders to enter into the Credit Agreement and the other Loan Documents and to induce Lenders to make the Loans and to incur Letter of Credit Obligations as provided for in the Credit Agreement, Grantors have agreed to grant a continuing Lien on the Collateral (as hereinafter defined) to secure the Obligations;

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.                                        Defined Terms .

 

(a)           All capitalized terms used but not otherwise defined herein have the meanings given to them in the Credit Agreement or in Annex A thereto.  All other terms contained in this Security Agreement, unless the context indicates otherwise, have the meanings provided for by the Code to the extent the same are used or defined therein.

 

(b)          “Uniform Commercial Code jurisdiction” means any jurisdiction that has adopted all or substantially all of Article 9 as contained in the 2000 Official Text of the Uniform Commercial Code, as recommended by the National Conference of Commissioners on Uniform State Laws and the American Law Institute, together with any subsequent amendments or modifications to the Official Text.

 



 

2.                                        Grant of Lien .

 

(a)           To secure the prompt and complete payment, performance and observance of all of the Obligations and all renewals, extensions, restructurings and refinancings thereof, each Grantor hereby grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to Agent, for itself and the benefit of Lenders, a Lien upon all of its right, title and interest in, to and under all personal property and other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of such Grantor (including under any trade names, styles or derivations thereof), and whether owned or consigned by or to, or leased from or to, such Grantor, and regardless of where located (all of which being hereinafter collectively referred to as the “ Collateral ”), including:

 

(i)                                      all Accounts;

 

(ii)                                   all Chattel Paper;

 

(iii)                                all Documents;

 

(iv)                               all General Intangibles (including payment intangibles and Software);

 

(v)                                  all Goods (including Inventory, Equipment and Fixtures);

 

(vi)                               all Instruments;

 

(vii)                            all Investment Property;

 

(viii)                         all Deposit Accounts (as such term is defined in the Code) of Grantor, including blocked accounts, concentration accounts, Disbursement Accounts, and all other bank accounts and all deposits therein;

 

(ix)                                 all money, cash or cash equivalents of Grantor;

 

(x)                                    all Supporting Obligations and Letter-of Credit Rights of Grantor;

 

(xi)                                 all commercial tort claims of Grantor; and

 

(xii)                              to the extent not otherwise included, all Proceeds, tort claims, insurance claims and other rights to payment not otherwise included in the foregoing and products of the foregoing and all accessions to, substitutions and replacements for, and rents and profits of, each of the foregoing.

 

(b)          In addition, to secure the prompt and complete payment, performance and observance of the Obligations and in order to induce Agent and Lenders as aforesaid, Grantor hereby grants to Agent, for itself and the benefit of Lenders, a right of setoff against the property of each Grantor held by Agent or any Lender, consisting of property described above in Section 2(a)  now or hereafter in the possession or custody of or in transit to Agent

 

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or any Lender, for any purpose, including safekeeping, collection or pledge, for the account of such Grantor, or as to which such Grantor may have any right or power.

 

(c)           This Security Agreement, the Credit Agreement, the Interim Order, the Final Order, and the other Loan Documents supplement each other, and the grants, priorities, rights and remedies of the Agent and Lenders hereunder and thereunder are cumulative.  The Liens and security interests referred to in this Section 2 and in the Loan Documents are deemed valid and perfected by entry of the Interim Order and the Final Order.  The Agent may, but shall not be required to, file any financing statements, mortgages, notices of lien or similar instruments in any jurisdiction or filing office, or to take possession of any Collateral or to take any other action in order to validate or perfect the Liens and security interests granted by or pursuant to this Security Agreement, the Interim Order, the Final Order or any other Loan Document.  If the Agent shall, in its discretion, from time to time choose to file such financing statements, mortgages, notices of lien or similar instruments, take possession of any Collateral, or to take any other action to validate or perfect any such security interests or Liens, all such documents shall be deemed to have been filed or recorded at the time and on the date of entry of the Interim Order.

 

(d)          The Liens, security interests, lien priorities, administrative expense claim priorities and other rights and remedies granted to the Agent and Lenders pursuant to this Security Agreement, the Interim Order, the Final Order, and the other Loan Documents (specifically including but not limited to the existence, perfection, and priority of the Liens and security interests provided herein and therein, and the administrative expense claim priority provided herein and therein) shall not be modified, altered, or impaired in any manner by any other financing or extension of credit or incurrence of debt by any of the Grantors (pursuant to Section 364 of the Bankruptcy Code or otherwise), or by any dismissal or conversion of any of the Prepackaged Chapter 11 Cases, or by any other act or omission whatsoever.  Without limitation, notwithstanding any such order, financing, extension, incurrence, dismissal, conversion, act or omission:

 

(i)                                      subject to the Carve-Out Expense provisions of the Credit Agreement, no costs or expenses of administration which have been or may be incurred in the Prepackaged Chapter 11 Cases or any conversion of the same or in any other proceedings related thereto, and no priority claims, are or will be prior to or on a parity with any claim of the Agent or Lenders against the Grantors in respect of any Obligation; and

 

(ii)                                   the Liens and security interests in favor of the Agent and Lenders set forth in this Section 2 and in the Loan Documents shall constitute valid and perfected first priority Liens and security interests, subject only to Liens permitted under the Credit Agreement, Permitted Encumbrances and the Carve-Out Expense provisions of the Credit Agreement, and shall be prior to all other Liens and interests, now existing or hereafter arising, in favor of any other creditor or any other person whatsoever.

 

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3.                                        Agent’s and Lenders’ Rights; Limitations on Agent’s and Lenders’ Obligations .

 

(a)           It is expressly agreed by Grantors that, anything herein or in any other Loan Document to the contrary notwithstanding, each Grantor shall remain liable under each of its Contractual Obligations, including all Licenses, to observe and perform all the conditions and obligations to be observed and performed by it thereunder.  Neither Agent nor any Lender shall have any obligation or liability under any Contractual Obligation by reason of or arising out of this Security Agreement or any other Loan Document or the granting herein of a Lien thereon or the receipt by Agent or any Lender of any payment relating to any Contractual Obligation pursuant hereto.  Neither Agent nor any Lender shall be required or obligated in any manner to perform or fulfill any of the obligations of any Grantor under or pursuant to any Contractual Obligation, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contractual Obligation, or to present or file any claims, or to take any action to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

 

(b)          At any time after an Event of Default has occurred and is continuing, without prior notice to Grantor, Agent may notify Account Debtors and other Persons obligated on any of the Collateral that Agent has a security interest therein, and that payments shall be made directly to Agent, for itself and the benefit of Lenders.  Upon the request of Agent, each Grantor shall so notify Account Debtors and other Persons obligated on Collateral.  Once any such notice has been given to any Account Debtor or other Person obligated on Collateral, each Grantor shall not give any contrary instructions to such Account Debtor or other Person without Agent’s prior written consent.

 

(c)           Agent may at any time in Agent’s own name, in the name of a nominee of Agent or in the name of any Grantor communicate (by mail, telephone, facsimile or otherwise) with Account Debtors, parties to Contractual Obligations and obligors in respect of Instruments to verify with such Persons, to Agent’s satisfaction, the existence, amount, terms of, and any other matter relating to, Accounts, Instruments, Chattel Paper and/or payment intangibles.  If a Default or Event of Default shall have occurred and be continuing, each Grantor, at its own expense, shall cause the independent certified public accountants then engaged by such Grantor to prepare and deliver to Agent and each Lender at any time and from time to time promptly upon Agent’s request the following reports with respect to Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a test verification of such Accounts as Agent may request.  Each Grantor, at its own expense, shall deliver to Agent the results of each physical verification, if any, which such Grantor may in its discretion have made, or caused any other Person to have made on its behalf, of all or any portion of its Inventory.

 

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4.                                        Representations and Warranties .  The Grantors jointly and severally, represent and warrant that:

 

(a)           Each Grantor has rights in and the power to transfer each item of the Collateral upon which it purports to grant a Lien hereunder free and clear of any and all Liens other than Liens permitted under the Credit Agreement and Permitted Encumbrances.

 

(b)          No effective security agreement, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is on file or of record in any public office, except such as may have been filed (i) by any Grantor in favor of Agent pursuant to this Security Agreement or the other Loan Documents, (ii) in connection with any Liens permitted under the Credit Agreement and Permitted Encumbrances, and (iii) by any Grantor in favor of the secured parties under the Pre-Petition Credit Agreement and related pre-petition loan documents.

 

(c)           This Security Agreement is effective to create a valid and continuing Lien on and, upon entry of the Interim Order or the Final Order (as applicable) or upon the filing of the appropriate financing statements listed on Schedule I hereto, a perfected Lien in favor of Agent, for itself and the benefit of Lenders, on the Collateral with respect to which a Lien may be perfected by entry of the Interim Order or the Final Order (as applicable) or a filing pursuant to the Code.  Such Lien is prior to all other Liens, except Permitted Encumbrances that would be prior to Liens in favor of Agent for the benefit of Agent and Lenders as a matter of law, and is enforceable as such as against any and all creditors of and purchasers from Grantor (other than purchasers and lessees of Inventory in the ordinary course of business and non-exclusive licensees of General Intangibles in the ordinary course of business).  Upon the entry of the Interim Order and the Final Order, all action by any Grantor necessary or desirable to protect and perfect such Lien on each item of the Collateral has been duly taken.  Other than as listed on Schedule III , Grantor does not sell any Inventory to any Person on approval or on any other basis which entitles the customer to return, or which may obligate any Grantor to repurchase, such Inventory.  Except as provided in the Interim Order or the Final Order (as applicable), no authorization, approval or consent is required to be obtained from any Governmental Authority or other Person for the grant of the security interest herein, the perfection thereof or the exercise by Agent of its rights and remedies hereunder.

 

(d)          Schedule II hereto lists all domestic Stock, Instruments, Documents, Letter of Credit Rights and Chattel Paper in respect of which each Grantor has an interest as of the date hereof.  Except as provided in the Interim Order or the Final Order (as applicable), all action by such Grantor necessary or desirable to protect and perfect the Lien of Agent on each item set forth on Schedule II (including the delivery of all originals thereof to Agent and the legending of all Chattel Paper as required by  Section 5(b) hereof) has been duly taken.  The Lien of Agent, for the benefit of Agent and Lenders, on the Collateral listed on Schedule II hereto is prior to all other Liens, except Liens permitted under the Credit Agreement and

 

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Permitted Encumbrances that would be prior to the Liens in favor of Agent as a matter of law, and is enforceable as such against any and all creditors of and purchasers any Grantor.

 

(e)           Each Grantor’s name as it appears in official filings in the state of its incorporation or other organization, the type of entity of each Grantor (including corporation, partnership, limited partnership or limited liability company), organizational identification number issued by each Grantor’s state of incorporation or organization or a statement that no such number has been issued, Grantor’s state of organization or incorporation, the location of Grantor’s chief executive office, principal place of business, all warehouses, consignees and processors with whom Inventory is stored or located and other premises where Collateral is stored or located, and the locations of its books and records concerning the Collateral are set forth on Schedule III hereto.  Schedule III hereto also sets forth the name as it appears in official filings in the state of its incorporation or other organization of any Person from whom Grantor has acquired assets during the past five (5) years, other than assets acquired in the ordinary course of Grantor’s business.  Each Grantor has only one state of incorporation or organization.

 

(f)             With respect to the Accounts, except as specifically disclosed on the most recent Borrowing Base Certificate or other collateral report delivered to Agent (i) they represent bona fide sales or leases of Inventory or rendering of services to Account Debtors in the ordinary course of each Grantor’s business and are not evidenced by a judgment, Instrument or Chattel Paper; (ii) there are no setoffs, claims or disputes existing or asserted with respect thereto and no Grantor has made any agreement with any Account Debtor for any extension of time for the payment thereof, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance allowed by such Grantor in the ordinary course of its business for prompt payment and disclosed to Agent; (iii) to each Grantor’s knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability thereof or could reasonably be expected to reduce the amount payable thereunder as shown on any Grantor’s books and records and any invoices, statements and Borrowing Base Certificate or other collateral report delivered to Agent and Lenders with respect thereto; (iv) no Grantor has received any notice of proceedings or actions which are threatened or pending against any Account Debtor which might result in any adverse change in such Account Debtor’s financial condition; and (v) no Grantor has knowledge that any Account Debtor is unable generally to pay its debts as they become due; and (vi) they constitute the legally valid and binding obligation of the applicable Account Debtors.  Further with respect to the Accounts (x) the amounts shown on all invoices, statements and Borrowing Base Certificate or other collateral report which may be delivered to the Agent with respect thereto are actually and absolutely owing to such Grantor as indicated thereon and are not in any way contingent; (y) no payments have been or shall be made thereon except payments immediately delivered to the applicable Blocked Accounts or to the Agent as required by the Credit Agreement; and (z) to each Grantor’s knowledge, all Account Debtors have the capacity to contract.

 

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(g)          With respect to the Inventory (i) all such Inventory is located at one of the locations set forth on Schedule III hereto, (ii) no Inventory is now, or shall at any time or times hereafter be stored at any other location without Agent’s prior consent, and if Agent gives such consent, the applicable Grantor will concurrently therewith obtain, to the extent required by the Credit Agreement, bailee, landlord and mortgagee agreements, (iii) the applicable Grantor has good, indefeasible and merchantable title to such Inventory and such Inventory is not subject to any Lien or security interest or document whatsoever except for the Lien granted to Agent, for the benefit of Agent and Lenders, and except for Liens permitted under the Credit Agreement and Permitted Encumbrances, (iv) such Inventory is not subject to any licensing, patent, royalty, trademark, trade name or copyright agreements with any third parties which would require any consent of any third party upon sale or other disposition of that Inventory or the payment of any monies to any third party upon such sale or other disposition, and (v) the completion of manufacture, sale or other disposition of such Inventory by Agent following an Event of Default shall not require the consent of any Person and shall not constitute a breach or default under any contract or agreement to which Grantor is a party or to which such property is subject.

 

(h)          no Grantor has any interest in, or title to, any material Patent, Trademark or Copyright except as set forth in Schedule 3.9 to the Credit Agreement.  This Security Agreement is effective to create a valid and continuing Lien on and, upon the entry of the Interim Order and the Final Order (as applicable) or upon filing of the Copyright Security Agreements with the United States Copyright Office and filing of the Patent Security Agreements and the Trademark Security Agreements with the United States Patent and Trademark Office, perfected Liens in favor of Agent on each Grantor’s federally registered Patents, Trademarks and Copyrights and such perfected Liens are enforceable as such as against any and all creditors of and purchasers from any Grantor.  Upon the entry of the Interim Order and the Final Order (as applicable) or upon filing of the Copyright Security Agreements with the United States Copyright Office and filing of the Patent Security Agreements and the Trademark Security Agreements with the United States Patent and Trademark Office and the filing of appropriate financing statements listed on Schedule I hereto, all action necessary or desirable to protect and perfect Agent’s Lien on each Grantor’s federally registered Patents, Trademarks or Copyrights shall have been duly taken.

 

5.                                        Covenants .  The Grantors, jointly and severally, covenant and agree with Agent, for the benefit of Agent and Lenders, that from and after the date of this Security Agreement and until the Termination Date:

 

(a)           Further Assurances; Pledge of Instruments; Chattel Paper .

 

(i)                                      At any time and from time to time, upon the written request of Agent and at the sole expense of Grantors and without any further order of the Bankruptcy Court, each Grantor shall promptly and duly execute and deliver any and all such further instruments and documents and take such further actions as Agent may deem necessary or desirable to obtain the full benefits of this Security Agreement and of the

 

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rights and powers herein granted, including (A) all consents and approvals necessary or appropriate for the assignment to or for the benefit of Agent of any Contractual Obligation, including any License, held by such Grantor and to enforce the security interests granted hereunder; and (B) filing any financing or continuation statements under the Code with respect to the Liens granted hereunder or under any other Loan






 
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